Martin W. Lester, one of our attorneys, recently authored the chapter “Advising the Small Business Client: Needs, Expectations, and Reality” in Employing International Workers (Aspatore Books, Inside the Minds Series, 2011 Edition).
Our attorneys represent both businesses and individuals in a wide range of visa cases, including applications for the following categories:
H-1B: “Specialty Occupation” visas, usually requiring a bachelor’s degree or equivalent. H-1B visas are typically granted for a 3-year period, with one renewal possible. Companies use H-1B visas to hire professional workers for positions they are unable to fill with United States workers. We assist our clients in complying with USCIS regulations for H-1B visas, including advertising and posting the position, documenting and justifying the specialty nature of the position, determining the proper position description and required wage, and preparing and submitting the labor condition application (LCA) and USCIS petition.
H-2A / H-2B: “Temporary Service or Labor” visas are used for lower-level workers needed on a seasonal or temporary basis. H-2A and H2B visas can last no longer than a year, although they can be renewable. Depending on the circumstances, an employer may be able to petition for more than one H-2 employee at a time if the employer can demonstrate the need to fill multiple positions. As with H-1B visas, there are advertisement, wage, and recruitment requirements. Our attorneys assist clients with applications for H-2 employees, including proving the employer’s need, the attempts to fill the need with United States workers, the appropriateness of the wage offered and skills and education required, and the nature of the position itself.
L-1: “International Transfer” visa used by a company to transfer an employee from the home country to a position in the United States. The positions involved must have been managerial/executive (L-1A) or specialized knowledge capacity (L-1B). Our attorneys help clients demonstrate the qualifying previous employment, the acceptable nature of the new position, the appropriate corporate structure, and the admissibility of the employee.
E-1 / E-2: “Treaty Trader” (E-1) or “Business Development” (E-2) visas are available to nationals of countries which have the appropriate bilateral treaties in place with the United States. E-1 visas are used for businesses whose primary purpose is import/export between the United States and the national’s country of origin. E-2 visas are used by individuals who are investing in and actively managing businesses in the United States. While neither visa leads to permanent residency, E visas can often be renewed multiple times as long as the individual is still involved in the business activity. Our attorneys help E visa clients develop appropriate business plans, help them locate necessary community resources (such as funding sources and accounting providers), and prepare and submit applications both within the United States and abroad.
PERM: “PERM” is the name used for the current process of applying for lawful permanent residency (LPR, or “green card”) status in the United States based on employment. In some cases, the potential employee is already in a valid non-immigrant status in the United States, and seeks to make his situation permanent. In other cases, the individual has not yet entered the United States, but wants to live in the United States permanently. Our attorneys represent businesses in navigating the complex PERM requirements for recruiting, advertising, posting, and justifying the position to USCIS.
EB-5: “Employment Creation” visas are available to individuals who are willing to invest a substantial sum of money (at least $500,000.00) in certain United States commercial enterprises that create or preserve a specified number of jobs. Although the intending immigrant need not live in the same area where the business is located, he or she must engage in either day-to-day business management or policy formation. When granted, LPR status under EB-5 is conditional for two years, and must be reviewed at the end of that period to insure that the goals of the program are being met. Our attorneys can represent clients in every step of this process, including identifying appropriate investments, preparing and filing immigrant visa petitions, and requesting removal of conditions.
The above are merely the most common types of business visas. Depending on your particular situation and nationality, other types of visas may be available.